Citation NR: 9713313
Decision Date: 04/16/97 Archive Date: 04/29/97
DOCKET NO. 93-08 623 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUE
Whether the veteran’s dependency allowance was properly
terminated, effective February 1, 1984.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Mark D. Chestnutt, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1951 to May
1971.
This appeal stems from a September 1991 decision of the RO
that terminated the veteran’s dependency allowance, effective
February 1, 1984.
The Board of Veterans’ Appeals (Board) remanded this case in
March 1995. No further development is necessary; this case
is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the payments for a dependency
allowance he received after he divorced his second wife,
Theresa, were due to sole administrative error on the part o
the VA. He asserts that he informed the VA in 1984, by
telephone, that he had divorced his second wife. He believes
that a June 1984 Designation of Beneficiary and Optional
Settlement form, which he filed with the VA, also effectively
notified the VA that he was divorced. He also contends that
a March 1989 psychiatric treatment record, which indicates
that the veteran had been divorced, also operated to notify
the VA of his marital status. This being the case, he
essentially asserts, his dependency allowance should not be
terminated any earlier than the last erroneous payment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s dependency
allowance was properly terminated, effective February 1,
1984.
FINDINGS OF FACT
1. All relevant evidence necessary for the disposition of
the veteran’s appeal has been obtained.
2. There is no report of contact or other evidence from 1984
that the veteran notified the VA of his change in marital
status. None of the evidence submitted prior to July 1991
shows that the veteran’s marital status had changed in
January 1984.
3. The monthly dependency allowance payments for a spouse,
covering the period from February 1, 1984 to January 1, 1991,
which were erroneous, were caused by the veteran’s acts of
omission and commission.
CONCLUSION OF LAW
The veteran’s dependency allowance was properly terminated,
effective February 1, 1984. 38 U.S.C.A. §§ 1114, 1115, 5107,
5112(b)(9),(10) (West 1991 & Supp. 1996); 38 C.F.R. § 3.500
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran’s claim is “well
grounded” within the meaning of 38 U.S.C.A. § 5107. The
Board is also satisfied that all relevant evidence has been
properly developed and that there is no further duty to
assist in order to comply with the duty to assist as mandated
by 38 U.S.C.A. § 5107.
In September 1981, the veteran submitted a copy of a March
1981 death certificate showing the death of his wife, Kate.
He specifically asked that her name be removed from his “VA
award.”
In July 1982 the veteran submitted a copy of a marriage
certificate, showing that he had married a second wife,
Theresa, in April 1982.
The VA sent the veteran a letter in July 1982 indicating that
his award was amended and included additional benefits for
his spouse. He was informed in that letter that any change
in the number or status of his dependents must be reported
promptly to the VA.
Another such award letter was sent to the veteran in August
1982, again informing him of the need to notify the VA of any
change in the number or status of his dependents.
A copy of VA Form 29-336, Designation of Beneficiary and
Optional Settlement, apparently recorded in June 1984,
indicates that the veteran wished to change his insurance
beneficiary to his niece, and that there was to be no
contingent beneficiary.
In March 1989 the veteran submitted a psychiatric examination
report from his private physician Renato R. Alcalde, M.D.,
which indicated, inter alia, that the veteran was divorced.
In July 1991, in response to a request from the RO to provide
the Social Security number of his spouse, the veteran
indicated that he was not married.
A Final Judgment of Dissolution of Marriage, submitted in
August 1991, shows that the veteran and his second wife were
divorced in January 1984.
Generally, the effective date of a reduction or
discontinuance of compensation by reason of divorce shall be
the last day of the month in which such divorce occurs. The
effective date of a reduction or discontinuance of
compensation by reason of an erroneous award based on an act
of commission or omission by the beneficiary, or with the
beneficiary’s knowledge, shall be the effective date of the
award; and the effective date of a reduction by reason of an
erroneous award based solely on administrative error or error
in judgment shall be the date of the last payment.
38 U.S.C.A. § 5112(b). The United States Court of Veterans
Appeals has interpreted 38 C.F.R. § 3.500(b)(1) as providing
for a discontinuance of payment that is based on error
(either administrative or by the payee) as the date the award
became erroneous, where the award was based on an act of
commission or omission by a payee, or with the payee’s
knowledge, but not earlier than the date the entitlement
ceased. Jordan v. Brown, No. 95-714 (U.S. Vet.App. Apr. 1,
1997).
In this case, the veteran was clearly made aware of the
requirement to report the change in number or status of
dependents. In fact, he did so not long after his first wife
died, and not long after he remarried.
The veteran has contended that he contacted the VA in 1984,
by telephone, regarding his divorce from Theresa. There is
no report of contact currently in the claims file reflecting
such a report, nor is there any other such documentation of
the change of marital status at that time. Moreover, the
veteran continued to receive payments that were not reduced
in amount, and he did not alert the VA to the fact that his
checks had not been reduced to reflect his divorce.
Assuming, arguendo, that the veteran had reported the change
in his marital status, this would not validate his acceptance
of subsequent payments that included a dependency allowance.
Jordan v. Brown.
The veteran’s assertion, that the June 1984 Designation of
Beneficiary and Optional Settlement form shows that he was no
longer married, is without merit. Nothing on that form in
any way shows that the veteran’s marital status had changed.
Likewise, the March 1989 psychiatric report was not a
submission by him which indicated that his marital status had
changed--he, in no way, alerted the RO to the fact he was
receiving a dependency allowance to which he was not
entitled. The examining physician only mentioned that the
veteran was divorced in a passing remark. Even if this could
be construed as notice of the divorce, the veteran continued
to receive payments from the VA long after March 1989 for an
additional dependency allowance to which he was not entitled.
Jordan.
Since the veteran was clearly at fault for not timely
reporting his change in marital status, it cannot be said
that the erroneous dependency allowance paid from February 1,
1984 to January 1, 1991 were due solely to administrative
error. The veteran’s act of omission--continually failing to
notify the VA of his change in marital status--and his acts
of commission--continually accepting the erroneous payments--
resulted in the erroneous payments during the time period in
question after his January 1984 divorce. Since the erroneous
payments were not due solely to administrative error, the
effective date of the reduction in his compensation is
February 1, 1984. 38 U.S.C.A. § 5112; 38 C.F.R. § 3.500;
Jordan.
ORDER
The veteran’s dependency allowance was properly terminated,
effective February 1, 1984; the appeal is denied.
HILARY L. GOODMAN
Acting Member, Board of Veterans’ Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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